Supreme Court Decisions Likely to Result in Increased Number of Retaliation Claims

6.10.2008

In two decisions issued on the same day at the end of May, the Supreme Court ruled that employees are protected from retaliation when they complain about discrimination in the workplace, adopting a broad interpretation of workers' rights under two separate federal civil rights laws. Those laws make no mention of a retaliation cause of action. Congress provided explicit protection against retaliation in Title VII of the Civil Rights Act of 1964 ("Title VII") and in the provision of the Age Discrimination in Employment Act (ADEA) that applies in the private sector. However, Congress did not provide explicit retaliation protection in the provision of the ADEA applying to federal government workers. Nor did it include explicit language in § 1981, a post Civil War era statute that gives "all persons" the same rights "enjoyed by white citizens" when it comes to making and enforcing contracts, such as contracts for employment. Those two statutes were interpreted by the Court in its two late-May rulings. In CBOCS West, Inc. v. Humphries, a race case, an employee of the Cracker Barrel restaurant chain sued his employer, claiming he was terminated because of his race and because he complained about racial discrimination against a co-worker. The employee invoked both Title VII and § 1981. The Court relied heavily on precedent to hold that § 1981 allows retaliation claims. The Humphries case is significant because, unlike Title VII claims, § 1981 includes no limitations on the amount of punitive and noneconomic damages available to a plaintiff. It also has a longer statute of limitations and does not require a plaintiff to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) prior to filing a lawsuit. In the second case, Gomez-Perez v. Potter, the Supreme Court examined the ADEA's federal sector provision, 29 U.S.C. § 633a(a). Gomez-Perez, a postal worker, sued her government employer alleging she had been retaliated against for complaining about age discrimination. Again relying heavily on precedent, the Court held that § 633a(a) encompasses retaliation claims. As we have previously told you, retaliation claims are on the rise and now represent more than one-third of the charges filed with the EEOC. Employers should expect even more retaliation claims, especially for race claims under § 1981.